Justia U.S. 7th Circuit Court of Appeals Opinion Summaries

About 150 property owners in a village near the Mississippi River claim that defendants’ refinery leaked benzene and other contaminants into the groundwater. They sued, alleging nuisance and related torts. The district court certified the class. The Seventh Circuit reversed. The court first rejected an argument that most class members had suffered no injury. How many class members have a valid claim is determined after certification. Predominance of issues common to all class members, like other certification requirements, goes to the efficiency of a class action as an alternative to individual suits. In this case, the alleged contamination occurred over a 90‐year period and involved different levels of contamination, caused by different polluters. Not every class member has experienced the same diminution in property value even if everyone had the same level of contamination. Plaintiff’s hydrogeologist, intended to measure contamination by the benzene levels in the groundwater beneath the plaintiffs’ properties, even though their water does not come from groundwater, but from an uncontaminated aquifer. It cannot be assumed that a decline in the value of property in the village is the result of proximity to a refinery. The district judge did not explore any of these issues, but treated predominance as a pleading requirement. View "Shell Oil Co. v. Parko" on Justia Law

An asbestos survey showed that the Kankakee building contained 2,200 linear feet of asbestos‐containing insulation around pipes. The owner hired Origin Fire Protection, to modify its sprinkler system. O’Malley, who operated Origin, offered to properly remove the pipe insulation for a cash payment ($12,000) and dispose of it in a lawful landfill. O’Malley provided no written contract for the removal work, but provided a written contract for the sprinkler system. O’Malley and Origin were not licensed to remove asbestos. O’Malley hired untrained workers, who stripped dry asbestos insulation off the pipes using a circular saw and other equipment provided by O’Malley. The workers were given paint suits, simple dust masks, and respirators with missing filters. They stopped working after inhaling dust that made them sick. Asbestos insulation was packed into garbage bags and taken to abandoned properties and a store dumpster. The Illinois EPA discovered the dumping; Superfund contractors began cleanup. O’Malley attempted to mislead federal agents. O’Malley was convicted of removing, transporting, and dumping asbestos‐containing insulation. The Seventh Circuit affirmed, rejecting an argument that the government did not prove the appropriate mens rea for Clean Air Act violations. O’Malley argued that the government was required to prove that he knew that the asbestos in the building was a regulated type of asbestos. View "United States v. O'Malley" on Justia Law

The Wisconsin DNR decided to terminate a separate Pollutant Discharge Elimination System (WPDES) permit for Flambeau’s mining operation and to regulate Flambeau’s storm water discharge under its mining permit, allowing more frequent inspections. Flambeau has been in compliance since the permit issued in 1998. Plaintiff filed suit under the Clean Water Act’s citizen‐suit provision, 33 U.S.C. 1365(a)(1), alleging that Flambeau violated the CWA by discharging pollutants without a permit. They argued that the CWA permit shield did not apply because Flambeau did not have a WPDES permit and its mining permit was not issued pursuant to the CWA because Flambeau could not establish that the EPA had specifically approved the regulation under which the DNR issued the permit. The district court agreed and, after a trial, determined that Flambeau had violated the CWA and assessed penalties. The Seventh Circuit reversed, finding that the permit shield applies, characterizing the suit as an attempt to collaterally attack the WPDES program. View "WI Res. Prot. Council v. Flambeau Mining Co." on Justia Law

Third Site is a Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) site that was part of a larger area, under common ownership by the Bankerts, used for recycling industrial wastes. Cleanup initially focused on other sites, but in 1987 and 1992 consultants found concentrations of volatile organic compounds; Third Site was transferring pollutants to Finley Creek, which flows to Eagle Creek Reservoir, which supplies Indianapolis drinking water. The creek was realigned. In 1999, the EPA entered into an Administrative Order by Consent (AOC) with potentially responsible parties. Non-Premium Respondents agreed to undertake an Engineering Evaluation and Cost Analysis (EE/CA) of removal alternatives and to settle a trust to bankroll the EE/CA. Premium Respondents, allegedly de minimis contributors, were entitled to settle out with a one-time Trust contribution under 42 U.S.C. 9622(g). Non-Premium Respondents met their obligations. In 2002, the parties entered into a second AOC to perform work described by the Enforcement Action Memorandum: Non-Premium respondents had the same Trust obligations for removal efforts. The Bankerts are Non-Premium Respondents under both AOCs, but have not met their obligations. In 2008, the Trustees sued the Bankerts and their insurers, seeking cost recovery under CERCLA, 42 U.S.C. 9607(a), and Indiana law. One of the insurers argued that its successful litigation in connection with cleanup of the adjoining site precluded a finding of coverage. Entering summary judgment for the Bankerts, the district court construed the CERCLA claim as seeking contribution under 42 U.S.C. 9613(f), and barred by the statute of limitations, so that issues concerning the insurer were moot. The Seventh Circuit remanded reinstated claims under 42 U.S.C. 9607(a)(4)(B), to recover costs incurred under the 2002 AOC and against the insurer. On rehearing, the court clarified that a party responsible for contamination may obtain an immediately effective release from the EPA in a settlement, or it may obtain only a performance-dependent conditional covenant not to sue with an accompanying disclaimer of liability. Whether, and when, a given settlement “resolves” a party’s liability under 42 U.S.C. 9613(f)(3)(B) is case-specific and depends on its terms. In this case, the AOC did not provide for resolution upon entering into the agreement. View "Bernstein v. Bankert" on Justia Law

The Federal Highway Administration and the Indiana Department of Transportation decided to complete an Indiana segment of I-69, which will eventually run from Canada to Mexico. Environmentalists opposed the route and sued under the Clean Water Act, 33 U.S.C. 1344, which authorizes the Army Corps of Engineers to issue permits for discharge of dredged or fill material into navigable waters of the United States. A permit will be denied if there is “a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem,” 40 C.F.R. 230.10(a), or if the discharge “would be contrary to the public interest.” 33 C.F.R. 320.4(a)(1). The permit at issue allows six streams to be filled where the highway crosses them and permits destruction of wetlands. The environmentalists proposed, in the alternative, simply upgrading to federal interstate highway standards, and existing route. In an environmental impact statement, the Corps concluded that no less environmentally damaging alternative was practicable, that the project was not contrary to the public interest, that damage to wetlands would be modest and would be offset by creation of new wetlands. The Seventh Circuit affirmed, rejecting challenges to the environmental analysis. View "Hoosier Envtl. Council, v. U.S. Army Corps of Eng'rs" on Justia Law

Between 1994 and 1999 Commonwealth Edison modified five Illinois coal-fired power plants that had been operating on August 7, 1977, and were, therefore, grandfathered against a permitting requirement applicable to any “major emitting facility” built or substantially modified after that date in parts of the country subject to the rules about prevention of significant deterioration, 42 U.S.C. 7475(a), until the modification. The permit requires installation of “the best available control technology for each pollutant subject to regulation.” Commonwealth Edison did not obtain permits. There was no challenge until 2009, a decade after completion of the modifications. The district court dismissed a challenge as untimely. After finishing the modifications, Commonwealth Edison sold the plants to Midwest. The federal government and Illinois (plaintiffs) argued that the district court allowed corporate restructuring to wipe out liability for ongoing pollution. Midwest and its corporate parent (Edison Mission) filed bankruptcy petitions after the appeal was argued. The Seventh Circuit affirmed. Midwest cannot be liable because its predecessor would not have been liable had it owned the plants continuously. Commonwealth Edison needed permits before undertaking the modifications. The court rejected arguments of continuing-violation and continuing-injury. View "United States v. Midwest Generation, LLC" on Justia Law

In the 1980s, the owners bought the Cottonwood seasonal campground in Cedar Grove, Indiana. Each of 50-80 campsites has a water spigot and sewer hookup for recreational vehicles. The property also has two restrooms with working toilets, sinks, and showers. In 1998, the Environmental Protection Agency (EPA) issued an Administrative Order under the Safe Drinking Water Act, 42 U.S.C. 300g-3(b), (g), finding that Cottonwood operated as a public water system and was required to sample its water system, and to notify any individuals who use the property of its past failure to monitor the water system. The owners tested the water only sporadically over the following years. They denied that the water system constituted a public water system under SDWA because the water spigots are marked as “Non-Potable,” so users would know that water is not provided for human consumption. The district court entered summary judgment, finding violation of SDWA. The Seventh Circuit dismissed an appeal, finding that the owners had not raised any of their appellate arguments in the district court. View "United States v. Ritz" on Justia Law

In 2010 the U.S. and Wisconsin sued, alleging that defendants polluted the Lower Fox River and Green Bay with PCBs, and had liability under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, for response costs and destruction of natural resources, estimated at $1.5 billion. The Justice Department submitted a proposed consent decree, negotiated among the state, defendants (Brown County and the City of Green Bay), and Indian tribes. The U.S. offered $4.5 million because federal agencies might have contributed to the pollution. Menasha opposed the decree and counterclaimed against the U.S. for costs that Menasha would incur if found liable. Ordinarily a non-party to a consent decree is not bound by it, but approval of the consent decree would otherwise extinguish Menasha’s claims. Menasha sought information under the Freedom of Information Act, claiming that U.S. attorneys, being from defense and prosecution teams, actually have adverse interests, and that their communication concerning the case resulted in forfeiture of attorney work product privilege. The district court held that Menasha was entitled to the documents. The Seventh Circuit reversed, reasoning that Menasha’s claim actually amounted to assertion that the federal attorneys “ganged up” to reduce federal liability and that the documents are privileged. View "Menasha Corp. v. U.S. Dept. of Justice" on Justia Law

The government alleged, under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, that API and seven other companies caused $1 billion in PCB contamination in the Fox River near Green Bay, Wisconsin, and hired a consultant to prepare reports on the companies’ percentages of responsibility. API unsuccessfully sought discovery of these reports by challenging a consent decree between the government and another company, then filed a Freedom of Information Act request seeking the material. The government refused under the FOIA exemption covering attorney work product. The district court ruled in favor of the government. The Seventh Circuit affirmed. The government used portions of its reports in two consent decrees, but that use does not waive work product immunity for all the related content. API misconstrued the privilege, erroneously suggesting that facts underlying the conclusions are unprotected.View "Appleton Papers Inc. v. Envtl. Prot. Agency" on Justia Law

Enviro-Chem conducted waste-handling and disposal operations at three sites north of Zionsville, Indiana, until it ceased operations in 1982, leaving considerable amounts of pollutants. The U.S. Environmental Protection Agency undertook cleanup and identified potentially responsible parties (PRPs), including former owners, their corporate entities, and their insurers. A trust was established to fund cleanup and trustees sued to recover cleanup costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9607(a) (CERCLA), the Indiana Environmental Legal Actions Statute (ELA), and more. Work continues at the site at issue. The district court dismissed, in part, on limitations grounds, construing the complaint as seeking contribution. The Seventh Circuit reversed dismissal of three counts, holding that claims to recover costs incurred pursuant to the 2002 Administrative Order by Consent between the EPA and PRPs and that related claims, including the ELA claim, were not moot. The court upheld denial of an insurer’s motion for summary judgment on preclusion grounds. View "Bernstein v. Bankert" on Justia Law